2024-11-18 20:23:00
An initiative proposal to revise the cell phone confiscation lifted by the Constitutional Court (VfGH) is to be submitted to the National Council on Wednesday. This was announced by Constitutional Minister Karoline Edtstadler (ÖVP) and Fritz Zeder, head of the criminal law section in the Green-led Ministry of Justice, at a panel discussion on Monday evening. The regulation, which expires on January 1, 2025, should be able to be decided in the National and Federal Councils before the new year.
In any case, intensive discussions and negotiations are currently ongoing, said Edtstadler. If the application is submitted on Wednesday, it must then be discussed in a committee and then decided on in the National Council – this would then be the case in mid-December. Justice Minister Alma Zadić (Greens) assumes that the new regulations can be approved with a broad majority this year. However, as parliamentary director Harald Dossi emphasized, the “free play of forces” would apply – a majority would have to be found apart from the current black-green government, as it no longer has one on its own.
Separate regulations for data carriers and other objects
Representatives of judges, public prosecutors and lawyers, academia and the Ministries of Justice and the Interior had their say at the panel discussion in parliament. The participants in the discussion agreed that at least some sort of resolution was needed. “Otherwise the wrong people in this country are happy on January 1st,” said Susanne Reindl-Krauskopf, head of the Institute for Criminal Law and Criminology at the University of Vienna. In any case, there is no time left for a new assessment, said Zeder. He assured that the new draft would take into account many concerns from the judiciary.
The section head gave a rough insight into the contents of the draft. This provides for separate regulations for the security of data carriers and other items. There should be graduated regulations based on intensity and urgency. It is also guaranteed that the analysis of the content of the data will be limited to what has been approved by the court. It is also planned that accused and victims can request their own search parameters according to which the data should be searched so that there is no one-sidedness. Everyone affected can view those parts of the evaluation results that are relevant to them. Legal protection officers are supposed to legally monitor and control the entire process; there are more resources for this.
Edtstadler and Zadić, who did not attend the event due to her pregnancy and whose statement was read out by Zeder, emphasized that there is a need for a balance between fundamental rights such as privacy and the interest of law enforcement. Tracking accidental discoveries on a confiscated cell phone will not be possible without limits in the future, said Edtstadler.
Clarity required when it comes to accidental discoveries
Lisa Pühringer from the Interior Ministry welcomed the fact that a new regulatory regime is to be created for the confiscation of data storage media and data, which will benefit the police. Questions such as whether one is allowed to access cloud data as part of a seizure are not answered by the Code of Criminal Procedure (StPO), which still seems to be based on an “analog world”. She expects that by restricting the evaluation process, chance findings will be reduced in practice.
Stephan Faulhammer from the Judges’ Association spoke out in favor of the public prosecutor’s office being empowered to influence the seizure. Michael Rohregger, President of the Vienna Bar Association, said that the court should look at data and only bring the allegations-related information to the public prosecutor’s office. No prosecutor wants to read data that she doesn’t have to read, said Cornelia Koller from the Association of Prosecutors. She advocated not pursuing accidental discoveries. However, special rules are needed for what should be done with serious accidental findings – such as depictions of child abuse.
Without new regulations, no seizures from 2025
The new regulation is necessary because the Constitutional Court (VfGH) lifted the acceptance of electronic data carriers such as cell phones and laptops without prior judicial approval on January 1, 2025. The current regulation would violate the right to private life and the data protection law. However, since there are no specific rules for electronic data carriers, the Constitutional Court has repealed the entire seizure rules, which is why, from next year, without a new law, no objects will be allowed to be confiscated for evidence purposes.
The coalition of ÖVP and Greens has not been able to agree on a solution since the VfGH decision at the end of 2023. A version that was ultimately rejected and which the two parties had already agreed upon attracted a lot of criticism from the judiciary during the assessment. However, some changes were already anticipated with a decree with which the Ministry of Justice responded last week to a directly applicable ruling by the European Court of Justice (ECJ).
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#Initiative #motion #cell #phone #security #parliament
How does the government plan to engage with various political parties to ensure the successful passage of the proposed legislation?
**Interview with Constitutional Minister Karoline Edtstadler on Proposed Cell Phone Confiscation Revisions**
*Date: November 18, 2024*
*Location: Vienna, Austria*
**Editor:** Thank you for joining us today, Minister Edtstadler. Can you share with us the motivations behind the upcoming proposal to revise cell phone confiscation regulations?
**Karoline Edtstadler:** Thank you for having me. The primary motivation is to create a balanced framework that respects the fundamental rights of privacy while ensuring law enforcement has the necessary tools to do its job effectively. The recent ruling from the Constitutional Court (VfGH) highlighted the need for clarity in how we handle data during confiscations, and we aim to address that.
**Editor:** You mentioned a balance between privacy and law enforcement interests. How will the proposed regulations achieve this?
**Edtstadler:** The proposal includes graduated regulations that consider the intensity and urgency of data access. Importantly, any content analysis will only occur as approved by the court, and both accused individuals and victims will have the right to request specific search parameters. This way, we ensure that there is fairness and transparency in the process.
**Editor:** During the panel discussion, concerns were raised about accidental discoveries during confiscation. How does the new proposal address that?
**Edtstadler:** We recognize that unintentional findings can infringe on privacy rights. Our approach is to restrict the evaluation process, which should significantly mitigate the chances of irrelevant or unauthorized data being accessed during an investigation.
**Editor:** What are the critical steps remaining before this proposal can be enacted into law?
**Edtstadler:** Once we submit the proposal to the National Council, it will go through committee discussions and ideally be voted on in mid-December. We believe there’s a strong chance for broad approval due to the collaborative nature of discussions across different political affiliations.
**Editor:** Can we expect any challenges in getting this legislation passed, especially considering the current political climate?
**Edtstadler:** While it’s true that our coalition does not hold a majority alone, we are committed to finding a consensus. The “free play of forces” approach means we will actively seek support from other parties to ensure that we can pass meaningful legislation before the January 1 deadline.
**Editor:** Thank you for your insights, Minister Edtstadler. We look forward to seeing how this proposal evolves in the coming weeks.
**Edtstadler:** Thank you for having me. I look forward to further discussions on this important issue.
